The United Nations Commission on International Trade Law (UNCITRAL) finalized
the Notes at its twenty-ninth session (New York, 28 May - 14 June 1996). In
addition to the 36 member States of the Commission, representatives of many
other States and of a number of international organizations had participated in
the deliberations. In preparing the draft materials, the Secretariat consulted
with experts from various legal systems, national arbitration bodies, as well as
international professional associations.

The Commission, after an initial discussion on the project in 1993,<1>
considered in 1994 a draft entitled "Draft Guidelines for Preparatory
Conferences in Arbitral Proceedings".<2> That draft was also discussed at
several meetings of arbitration practitioners, including the XIIth International
Arbitration Congress, held by the International Council for Commercial
Arbitration (ICCA) at Vienna from 3 to 6 November 1994.<3> On the basis of
those discussions in the Commission and elsewhere, the Secretariat prepared
"draft Notes on Organizing Arbitral Proceedings".<4> The Commission
considered the draft Notes in 1995,<5> and a revised draft in
1996,<6> when the Notes were finalized.<7>

<1> Report of the United Nations Commission on International Trade
Law on the work of its twenty- sixth session, Official Records of the General
Assembly, Forty-eighth Session, Supplement No. 17 (A/48/17) (reproduced in
UNCITRAL Yearbook, vol. XXIV: 1993, part one), paras. 291-296.

<2> The draft Guidelines have been published as document
A/CN.9/396/Add.1 (reproduced in UNCITRAL Yearbook, vol. XXV: 1994, part two,
IV); the considerations of the Commission are reflected in the report of the
United Nations Commission on International Trade Law on the work of its
twenty-seventh session, Official Records of the General Assembly, Forty-ninth
Session Supplement No. 17 (A/49/17) (reproduced in UNCITRAL Yearbook, Vol. XXV:
1994, part two, IV), paras. 111-195.

<3> The proceedings of the Congress are published in Planning
Efficient Arbitration Proceedings/The Law Applicable in International
Arbitration, ICCA Congress Series No. 7, Kluwer Law International, The Hague,
1996.

<4> The draft Notes have been published as document A/CN.9/410 (and
will be reproduced in UNCITRAL Yearbook, vol. XXVI: 1995, part two, III).

<5> Report of the United Nations Commission on International Trade
Law on the work of its twenty- eighth session, Official Records of the General
Assembly, Fiftieth Session, Supplement No. 17 (A/50/17) (and will be reproduced
in UNCITRAL Yearbook, vol. XXVI: 1995, part one), paras. 314-373.

<6> The revised draft Notes have been published as document
A/CN.9/423 (and will be reproduced in UNCITRAL Yearbook, vol. XXVII: 1996, part
two).

<7> Report of the United Nations Commission on International Trade
Law on the work of its twenty-ninth session, Official Records of the General
Assembly, Fifty-first Session, Supplement No. 17 (A/51/17) (and will be
reproduced in UNCITRAL Yearbook, vol. XXVII: 1996, part one), paras. 11 to 54.

1. The purpose of the Notes is to assist arbitration practitioners by listing
and briefly describing questions on which appropriately timed decisions on
organizing arbitral proceedings may be useful. The text, prepared with a
particular view to international arbitrations, may be used whether or not the
arbitration is administered by an arbitral institution.

Non-binding character of the Notes

2. No legal requirement binding on the arbitrators or the parties is imposed
by the Notes. The arbitral tribunal remains free to use the Notes as it sees fit
and is not required to give reasons for disregarding them.

3. The Notes are not suitable to be used as arbitration rules, since they do
not establish any obligation of the arbitral tribunal or the parties to act in a
particular way. Accordingly, the use of the Notes cannot imply any modification
of the arbitration rules that the parties may have agreed upon.

Discretion in conduct of proceedings and usefulness of timely decisions on
organizing proceedings

4. Laws governing the arbitral procedure and arbitration rules that parties
may agree upon typically allow the arbitral tribunal broad discretion and
flexibility in the conduct of arbitral proceedings.<8> This is useful in
that it enables the arbitral tribunal to take decisions on the organization of
proceedings that take into account the circumstances of the case, the
expectations of the parties and of the members of the arbitral tribunal, and the
need for a just and cost-efficient resolution of the dispute.

<8> A prominent example of such rules are the UNCITRAL Arbitration
Rules, which provide in article 15(1): "Subject to these Rules, the arbitral
tribunal may conduct the arbitration in such manner as it considers appropriate,
provided that the parties are treated with equality and that at any stage of the
proceedings each party is given a full opportunity of presenting his
case."

5. Such discretion may make it desirable for the arbitral tribunal to give
the parties a timely indication as to the organization of the proceedings and
the manner in which the tribunal intends to proceed. This is particularly
desirable in international arbitrations, where the participants may be
accustomed to differing styles of conducting arbitrations. Without such
guidance, a party may find aspects of the proceedings unpredictable and
difficult to prepare for. That may lead to misunderstandings, delays and
increased costs.

Multi-party arbitration

6. These Notes are intended for use not only in arbitrations with two parties
but also in arbitrations with three or more parties. Use of the Notes in
multi-party arbitration is referred to below in paragraphs 86-88 (item 18).

Process of making decisions on organizing arbitral proceedings

7. Decisions by the arbitral tribunal on organizing arbitral proceedings may
be taken with or without previous consultations with the parties. The method
chosen depends on whether, in view of the type of the question to be decided,
the arbitral tribunal considers that consultations are not necessary or that
hearing the views of the parties would be beneficial for increasing the
predictability of the proceedings or improving the procedural atmosphere.

8. The consultations, whether they involve only the arbitrators or also the
parties, can be held in one or more meetings, or can be carried out by
correspondence or telecommunications such as telefax or conference telephone
calls or other electronic means. Meetings may be held at the venue of
arbitration or at some other appropriate location.

9. In some arbitrations a special meeting may be devoted exclusively to such
procedural consultations; alternatively, the consultations may be held in
conjunction with a hearing on the substance of the dispute. Practices differ as
to whether such special meetings should be held and how they should be
organized. Special procedural meetings of the arbitrators and the parties
separate from hearings are in practice referred to by expressions such as
"preliminary meeting", "pre-hearing conference", "preparatory conference",
"pre-hearing review", or terms of similar meaning. The terms used partly depend
on the stage of the proceedings at which the meeting is taking place.

List of matters for possible consideration in organizing arbitral
proceedings

10. The Notes provide a list, followed by annotations, of matters on which
the arbitral tribunal may wish to formulate decisions on organizing arbitral
proceedings.

11. Given that procedural styles and practices in arbitration vary widely,
that the purpose of the Notes is not to promote any practice as best practice,
and that the Notes are designed for universal use, it is not attempted in the
Notes to describe in detail different arbitral practices or express a preference
for any of them.

12. The list, while not exhaustive, covers a broad range of situations that
may arise in an arbitration. In many arbitrations, however, only a limited
number of the matters mentioned in the list need to be considered. It also
depends on the circumstances of the case at which stage or stages of the
proceedings it would be useful to consider matters concerning the organization
of the proceedings. Generally, in order not to create opportunities for
unnecessary discussions and delay, it is advisable not to raise a matter
prematurely, i.e. before it is clear that a decision is needed.

13. When the Notes are used, it should be borne in mind that the discretion
of the arbitral tribunal in organizing the proceedings may be limited by
arbitration rules, by other provisions agreed to by the parties and by the law
applicable to the arbitral procedure. When an arbitration is administered by an
arbitral institution, various matters discussed in the Notes may be covered by
the rules and practices of that institution.

LIST OF MATTERS FOR POSSIBLE CONSIDERATION IN
ORGANIZING ARBITRAL PROCEEDINGS

1. Set of arbitration rules: paras. 14 - 16

If the parties have not agreed on a
set of arbitration rules, would they wish to do so: paras. 14 - 16

2. Language of proceedings 17-20

(a) Possible need for translation of
documents, in full or in part 18 interpretation of oral presentations
19

(b)
Possible need for

(c) Cost of translation and
interpretation 20

3. Place of arbitration 21-23

(a)
Determination of the place of
arbitration, if not already agreed upon by the parties 21-22

meetings outside the place of
arbitration 23(b) Possibility of

4. Administrative services that may be needed for the
arbitral tribunal to carry out its functions 24-27

If the parties have not agreed on a set of arbitration rules, would they
wish to do so

14. Sometimes parties who have not included in their arbitration agreement a
stipulation that a set of arbitration rules will govern their arbitral
proceedings might wish to do so after the arbitration has begun. If that occurs,
the UNCITRAL Arbitration Rules may be used either without modification or with
such modifications as the parties might wish to agree upon. In the alternative,
the parties might wish to adopt the rules of an arbitral institution; in that
case, it may be necessary to secure the agreement of that institution and to
stipulate the terms under which the arbitration could be carried out in
accordance with the rules of that institution.

15. However, caution is advised as consideration of a set of arbitration rules
might delay the proceedings or give rise to unnecessary controversy.

16. It should be noted that agreement on arbitration rules is not a necessity
and that, if the parties do not agree on a set of arbitration rules, the
arbitral tribunal has the power to continue the proceedings and determine how
the case will be conducted.

2. Language of proceedings

17. Many rules and laws on arbitral procedure empower the arbitral tribunal to
determine the language or languages to be used in the proceedings, if the
parties have not reached an agreement thereon.

(a) Possible need for translation of documents, in full or in
part

18. Some documents annexed to the statements of claim and defence or submitted
later may not be in the language of the proceedings. Bearing in mind the needs
of the proceedings and economy, it may be considered whether the arbitral
tribunal should order that any of those documents or parts thereof should be
accompanied by a translation into the language of the proceedings.

(b) Possible need for interpretation of oral presentations

19. If interpretation will be necessary during oral hearings, it is advisable
to consider whether the interpretation will be simultaneous or consecutive and
whether the arrangements should be the responsibility of a party or the arbitral
tribunal. In an arbitration administered by an institution, interpretation as
well as translation services are often arranged by the arbitral institution.

(c) Cost of translation and interpretation

20. In taking decisions about translation or interpretation, it is advisable
to decide whether any or all of the costs are to be paid directly by a party or
whether they will be paid out of the deposits and apportioned between the
parties along with the other arbitration costs.

3. Place of arbitration

(a) Determination of the place of arbitration, if not already agreed upon
by the parties

21. Arbitration rules usually allow the parties to agree on the place of
arbitration, subject to the requirement of some arbitral institutions that
arbitrations under their rules be conducted at a particular place, usually the
location of the institution. If the place has not been so agreed upon, the rules
governing the arbitration typically provide that it is in the power of the
arbitral tribunal or the institution administering the arbitration to determine
the place. If the arbitral tribunal is to make that determination, it may wish
to hear the views of the parties before doing so.

22.Various factual and legal factors influence the choice of the place of
arbitration, and their relative importance varies from case to case. Among the
more prominent factors are: (a) suitability of the law on arbitral procedure of
the place of arbitration; (b) whether there is a multilateral or bilateral
treaty on enforcement of arbitral awards between the State where the arbitration
takes place and the State or States where the award may have to be enforced; (c)
convenience of the parties and the arbitrators, including the travel distances;
(d) availability and cost of support services needed; and (e) location of the
subject-matter in dispute and proximity of evidence.

(b) Possibility of meetings outside the place of arbitration

23. Many sets of arbitration rules and laws on arbitral procedure expressly
allow the arbitral tribunal to hold meetings elsewhere than at the place of
arbitration. For example, under the UNCITRAL Model Law on International
Commercial Arbitration "the arbitral tribunal may, unless otherwise agreed by
the parties, meet at any place it considers appropriate for consultation among
its members, for hearing witnesses, experts or the parties, or for inspection of
goods, other property or documents" (article 20(2)). The purpose of this
discretion is to permit arbitral proceedings to be carried out in a manner that
is most efficient and economical.

4. Administrative services that may be needed for the arbitral tribunal to
carry out its functions

24. Various administrative services (e.g. hearing rooms or secretarial
services) may need to be procured for the arbitral tribunal to be able to carry
out its functions. When the arbitration is administered by an arbitral
institution, the institution will usually provide all or a good part of the
required administrative support to the arbitral tribunal. When an arbitration
administered by an arbitral institution takes place away from the seat of the
institution, the institution may be able to arrange for administrative services
to be obtained from another source, often an arbitral institution; some arbitral
institutions have entered into cooperation agreements with a view to providing
mutual assistance in servicing arbitral proceedings.

25. When the case is not administered by an institution, or the involvement of
the institution does not include providing administrative support, usually the
administrative arrangements for the proceedings will be made by the arbitral
tribunal or the presiding arbitrator; it may also be acceptable to leave some of
the arrangements to the parties, or to one of the parties subject to agreement
of the other party or parties. Even in such cases, a convenient source of
administrative support might be found in arbitral institutions, which often
offer their facilities to arbitrations not governed by the rules of the
institution. Otherwise, some services could be procured from entities such as
chambers of commerce, hotels or specialized firms providing secretarial or other
support services.

26. Administrative services might be secured by engaging a secretary of the
arbitral tribunal (also referred to as registrar, clerk, administrator or
rapporteur), who carries out the tasks under the direction of the arbitral
tribunal. Some arbitral institutions routinely assign such persons to the cases
administered by them. In arbitrations not administered by an institution or
where the arbitral institution does not appoint a secretary, some arbitrators
frequently engage such persons, at least in certain types of cases, whereas many
others normally conduct the proceedings without them.

27. To the extent the tasks of the secretary are purely organizational (e.g.
obtaining meeting rooms and providing or coordinating secretarial services),
this is usually not controversial. Differences in views, however, may arise if
the tasks include legal research and other professional assistance to the
arbitral tribunal (e.g. collecting case law or published commentaries on legal
issues defined by the arbitral tribunal, preparing summaries from case law and
publications, and sometimes also preparing drafts of procedural decisions or
drafts of certain parts of the award, in particular those concerning the facts
of the case). Views or expectations may differ especially where a task of the
secretary is similar to professional functions of the arbitrators. Such a role
of the secretary is in the view of some commentators inappropriate or is
appropriate only under certain conditions, such as that the parties agree
thereto. However, it is typically recognized that it is important to ensure that
the secretary does not perform any decision-making function of the arbitral
tribunal.

5. Deposits in respect of costs

(a) Amount to be deposited

28. In an arbitration administered by an institution, the institution often
sets, on the basis of an estimate of the costs of the proceedings, the amount to
be deposited as an advance for the costs of the arbitration. In other cases it
is customary for the arbitral tribunal to make such an estimate and request a
deposit. The estimate typically includes travel and other expenses by the
arbitrators, expenditures for administrative assistance required by the arbitral
tribunal, costs of any expert advice required by the arbitral tribunal, and the
fees for the arbitrators. Many arbitration rules have provisions on this matter,
including on whether the deposit should be made by the two parties (or all
parties in a multi-party case) or only by the claimant.

(b) Management of deposits

29.When the arbitration is administered by an institution, the institution's
services may include managing and accounting for the deposited money. Where that
is not the case, it might be useful to clarify matters such as the type and
location of the account in which the money will be kept and how the deposits
will be managed.

(c) Supplementary deposits

30. If during the course of proceedings it emerges that the costs will be
higher than anticipated, supplementary deposits may be required (e.g. because
the arbitral tribunal decides pursuant to the arbitration rules to appoint an
expert).

31. It is widely viewed that confidentiality is one of the advantageous and
helpful features of arbitration. Nevertheless, there is no uniform answer in
national laws as to the extent to which the participants in an arbitration are
under the duty to observe the confidentiality of information relating to the
case. Moreover, parties that have agreed on arbitration rules or other
provisions that do not expressly address the issue of confidentiality cannot
assume that all jurisdictions would recognize an implied commitment to
confidentiality. Furthermore, the participants in an arbitration might not have
the same understanding as regards the extent of confidentiality that is
expected. Therefore, the arbitral tribunal might wish to discuss that with the
parties and, if considered appropriate, record any agreed principles on the duty
of confidentiality.

32. An agreement on confidentiality might cover, for example, one or more of
the following matters: the material or information that is to be kept
confidential (e.g. pieces of evidence, written and oral arguments, the fact that
the arbitration is taking place, identity of the arbitrators, content of the
award); measures for maintaining confidentiality of such information and
hearings; whether any special procedures should be employed for maintaining the
confidentiality of information transmitted by electronic means (e.g. because
communication equipment is shared by several users, or because electronic mail
over public networks is considered not sufficiently protected against
unauthorized access); circumstances in which confidential information may be
disclosed in part or in whole (e.g. in the context of disclosures of information
in the public domain, or if required by law or a regulatory body).

7. Routing of written communications among the parties and the
arbitrators

33. To the extent the question how documents and other written communications
should be routed among the parties and the arbitrators is not settled by the
agreed rules, or, if an institution administers the case, by the practices of
the institution, it is useful for the arbitral tribunal to clarify the question
suitably early so as to avoid misunderstandings and delays.

34. Among various possible patterns of routing, one example is that a party
transmits the appropriate number of copies to the arbitral tribunal, or to the
arbitral institution, if one is involved, which then forwards them as
appropriate. Another example is that a party is to send copies simultaneously to
the arbitrators and the other party or parties. Documents and other written
communications directed by the arbitral tribunal or the presiding arbitrator to
one or more parties may also follow a determined pattern, such as through the
arbitral institution or by direct transmission. For some communications, in
particular those on organizational matters (e.g. dates for hearings), more
direct routes of communication may be agreed, even if, for example, the arbitral
institution acts as an intermediary for documents such as the statements of
claim and defence, evidence or written arguments.

8. Telefax and other electronic means of sending documents

(a) Telefax

35. Telefax, which offers many advantages over traditional means of
communication, is widely used in arbitral proceedings. Nevertheless, should it
be thought that, because of the characteristics of the equipment used, it would
be preferable not to rely only on a telefacsimile of a document, special
arrangements may be considered, such as that a particular piece of written
evidence should be mailed or otherwise physically delivered, or that certain
telefax messages should be confirmed by mailing or otherwise delivering
documents whose facsimile were transmitted by electronic means. When a document
should not be sent by telefax, it may, however, be appropriate, in order to
avoid an unnecessarily rigid procedure, for the arbitral tribunal to retain
discretion to accept an advance copy of a document by telefax for the purposes
of meeting a deadline, provided that the document itself is received within a
reasonable time thereafter.

36. It might be agreed that documents, or some of them, will be exchanged not
only in paper-based form, but in addition also in an electronic form other than
telefax (e.g. as electronic mail, or on a magnetic or optical disk), or only in
electronic form. Since the use of electronic means depends on the aptitude of
the persons involved and the availability of equipment and computer programs,
agreement is necessary for such means to be used. If both paper-based and
electronic means are to be used, it is advisable to decide which one is
controlling and, if there is a time-limit for submitting a document, which act
constitutes submission.

37. When the exchange of documents in electronic form is planned, it is
useful, in order to avoid technical difficulties, to agree on matters such as:
data carriers (e.g. electronic mail or computer disks) and their technical
characteristics; computer programs to be used in preparing the electronic
records; instructions for transforming the electronic records into
human-readable form; keeping of logs and back-up records of communications sent
and received; information in human-readable form that should accompany the disks
(e.g. the names of the originator and recipient, computer program, titles of the
electronic files and the back-up methods used); procedures when a message is
lost or the communication system otherwise fails; and identification of persons
who can be contacted if a problem occurs.

Continue on to: 9. Arrangements for
the exchange of written submissions